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Re: [Gnu-arch-users] OT: Slavery???
From: |
Tom Lord |
Subject: |
Re: [Gnu-arch-users] OT: Slavery??? |
Date: |
Sat, 22 Nov 2003 21:55:50 -0800 (PST) |
> From: "Stephen J. Turnbull" <address@hidden>
> >>>>> "Tom" == Tom Lord <address@hidden> writes:
> Tom> Ok, then. I'll turn it around (still in debugger mode -- one
> Tom> step at a time).
> I like this metaphor!
> Tom> Part of what offends me about the the BK license is very
> Tom> general: that it is a _contractual_offer_, and specifically
> Tom> an offer that asks users to give up their software freedoms
> (gdb) step
> They're not giving up "their software freedoms" in the sense that we
> usually think of freedom, when we're talking about fundamental rights.
> They're giving up the right to do certain things with a certain
> program, certain things that they could not do anyway until they
> acquire the program. When you accept Holmes's stricture that you may
> not scream "Fire!" in a crowded theater, have you given up your
> freedom of speech? Of course not! When you insist that it is right
> to prohibit proprietary licenses, do you mean to strip me of my right
> of contract? Of course not!---you simply intend to restrict it in a
> way you think is socially desirable.
Your "right to contract" is not some a priori element of nature --
some personal liberty granted by a creative force -- which can be
modified only by constructing restrictions. On the contrary, your
"right to contract" exists _only_ as social construction, at least
insofar as _enforcement_ is fundamental to contract. (Your "right to
gentlemen's agreement", being not based on enforcement, is a different
matter.)
All but one of the GPL software freedoms (to run, copy, modify, and
distribute -- but not to obtain source), in contrast, _are_ a priori
elements of nature. They are personal liberties, like speech or
association, that truly can only be modified by a constructed
restriction (whether voluntary, like a contract, or mandatory, like a
copyright, patent, or trademark law). The restrictions on those
freedoms exist only insofar as society as a whole is willing to back
them with enforcement.
There are, of course, varying theories about the nature of a state's
interest in enforcing contract but regardless of which theory you
believe in, the decision of what to enforce and what not to is
inextricably a matter of public policy. [1]
And there are, of course, varying theories about the best form of
construction for monopolies granted to authors and inventors -- but
again, that question is a matter of public policy.
Are you with me so far? Regarding those software freedoms which are
personal liberties, we will have to weigh the benefits of restricting
them in particular ways against the costs of enforcing those
restrictions as a matter of public policy.
The remaining software freedom, to obtain source, is, at least
superficially, of a different kind: it appears to be a restrictive
freedom impinging on the personal liberties of those who would
distribute software. To understand why the freedom to obtain source
must not be denied, we must either overcome the initial impression
that this is an impingement on the personal liberty of software
distributors or else we have a positive obligation: to explain why, as
a matter of public policy, enforcement of this freedom is appropriate.
-t
[1] Justice O'Conner, in her opinion on AMERICAN AIRLINES, INC.,
PETITIONER v. MYRON WOLENS et al. [January 18, 1995] wrote
nicely, mostly in the words of others, on this matter:
The doctrinal underpinnings of the notion that judicial
enforcement of the "intent of the parties" can be divorced from a
State's "public policy" have been in serious question for many
years. As one author wrote some time ago:
"A contract, therefore, between two or more individuals cannot be
said to be generally devoid of all public interest. If it be of no
interest, why enforce it? For note that in enforcing contracts,
the government does not merely allow two individuals to do what
they have found pleasant in their eyes. Enforcement, in fact, puts
the machinery of the law in the service of one party against the
other. When that is worthwhile and how that should be done are
important questions of public policy. . . . [T]he notion that in
enforcing contracts the state is only giving effect to the will of
the parties rests upon an . . . untenable theory as to what the
enforcement of contracts involves." Cohen, The Basis of Contract,
46 Harv. L. Rev. 553, 562 (1933).
More recent authors have expressed similar views. See, e. g.,
Braucher, Contract Versus Contractarianism: The Regulatory Role of
Contract Law, 47 Wash. & Lee L. Rev. 697, 699 (1990) ("Mediating
between private ordering and social concerns, contract is a
socioeconomic institution that requires an array of normative
choices. . . . The questions addressed by contract law concern
what social norms to use in the enforcement of contracts, not
whether social norms will be used at all"). Contract law is a set
of policy judgments concerning how to decide the meaning of
private agreements, which private agreements should be legally
enforceable, and what remedy to afford for their breach. The Court
fails to recognize that when a State decides to force parties to
comply with a contract, it does so only because it is satisfied
that state policy, as expressed in its contract law, will be
advanced by that decision.
- Re: [Gnu-arch-users] OT: Slavery???, (continued)
- Re: [Gnu-arch-users] DAV login problem (and a fix), Robin Farine, 2003/11/19
- Re: [Gnu-arch-users] DAV login problem (and a fix), Yasushi Saito - at home, 2003/11/19
- Re: [Gnu-arch-users] DAV login problem (and a fix), Robin Farine, 2003/11/19
- Re: [Gnu-arch-users] DAV login problem (and a fix), Robin Farine, 2003/11/19
- Re: [Gnu-arch-users] OT: Slavery???, Tom Lord, 2003/11/19
- Re: [Gnu-arch-users] OT: Slavery???, Stephen J. Turnbull, 2003/11/19
- Re: [Gnu-arch-users] OT: Slavery???,
Tom Lord <=
- Re: [Gnu-arch-users] OT: Slavery???, Peter Conrad, 2003/11/24
- Re: [Gnu-arch-users] OT: Slavery???, Momchil Velikov, 2003/11/24
- Re: [Gnu-arch-users] OT: Slavery???, Peter Conrad, 2003/11/24
- Re: [Gnu-arch-users] OT: Slavery???, Charles Duffy, 2003/11/24
- Re: [Gnu-arch-users] OT: Slavery???, Peter Conrad, 2003/11/24
- Re: [Gnu-arch-users] OT: Slavery???, Samium Gromoff, 2003/11/24
- Re: [Gnu-arch-users] OT: Slavery???, Samium Gromoff, 2003/11/24
- Re: [Gnu-arch-users] OT: Slavery???, Peter Conrad, 2003/11/24
- Re: [Gnu-arch-users] OT: Slavery???, Charles Duffy, 2003/11/24
- Re: [Gnu-arch-users] OT: Slavery???, Charles Duffy, 2003/11/24